1998 P Cr (PLP)

Abdul Kadir Abro for Applicants. Sardar Abdul Sattar Chohan for A.A.‑G. for the State. Six applicants nominated in F.I.R. No.46 of 1997 of Police Station Sarhad registered on 31‑12‑1997 have filed this application for pre‑arrest bail. The applicants are present. The facts of the prosecution case in short are to the effect that there is dispute between complainant and accused party over land for which they have already filed cases against each other which are pending in the Courts. On 31‑12‑1997 23 persons including the six applicants duly armed with lethal weapons like guns, hatchets and Lathis approached complainant Muhammad Iqbal who was present in his house alongwith his brothers Safdar and Atta Muhammad, his son Abdul Ghaffar and nephew Noor Afzal. It was about 8‑00 a.m. The, accused persons ordered the complainant party to hand over the house and Survey No.92/2 so that they may occupy the same. When the complainant party resisted, the accused on incitation of accused Iqbal Arain beat the inmates of the house to forcibly oust, Ah from the house. The result was that complainant received hatchet and Lathi injuries while Safdar also received similar injuries. When the ladies‑folk brought Holy Quran for restraining the accused, they did not listen and a lady Mst. Hajani was given Lathi blow. Thereafter, all the inmates of the house were forcibly evicted and the accused also forcibly occupied the agricultural land by trampling the standing lucern crop with a tractor, which was brought by accused Zulfikar Arain at that time. Household articles including T.V., tape‑recorder, stabiliser and other articles were also forcibly removed. Thereafter, the house of the complainant's brother Safdar which was adjacent to the complainant's house was set on fire as a result of which the household articles lying in the house were also burnt. The complainant thereafter lodged the report which was recorded for the offences punishable under sections 337‑A (ii), 337‑F(i), .148, 147, 149, 114, 327, 436 and 447, P.P.C. read with section 17/3, Offences Against Property (Enforcement of Hudood) Ordinance. The learned counsel while arguing stated that the case is result of enmity and that the applicants are innocent. Therefore, they deserve to be granted pre‑arrest bail. When the learned counsel was asked as to why the applicants had not surrendered themselves before the trial Court for the same relief for which they have approached the High Court directly, the answer was that since the police had completed the investigation, filed challan showing the applicants as absconders, the Trial Court had issued N.B.Ws., and therefore, they were likely to be arrested when they approached the Trial Court. Learned A.A.G. vehemently opposed grant of pre‑arrest bail to the applicants as according to him the mala fides on part of the police were not alleged. I have considered the arguments put forth by the learned counsel and also seen the police papers. The case was registered in the month of December, 1997 and the applicants are shown absconders by the police in the challan. Besides, absolutely no mala fides are alleged against the police. The nature of the offence is such that it speaks of highhandedness on part of the accused because of the enmity over land. The applicants cannot get the benefit of the enmity with the complainant party, as the enmity is the weapon which cuts both ways, as has been held in various decisions of the superior Courts. For the sake of seeking relief of pre‑arrest bail it is necessary for the applicants to show to the Court the mala fides on part of the police. In this case the investigation is over and the challan has already been submitted. The applicants having knowledge about the challan should approach the Trial Court instead of approaching the High Court directly. The Court which has issued N.B.Ws. has also the power to recall the same in case the applicants make out a case for such relief. Under these circumstances the request of the applicants for pre‑arrest bail is turned down with the direction that they should approach the Trial Court who will pass the orders strictly on merits looking to the circumstances of the case. H.B.T./S‑138/K Application dismissed.